Madras High Court
Nafeesa Nachiar (Died), M. Syed Abdul ... vs Umma Habeeba Nachiar And 39 Ors. on 1 June, 2003
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT R. Banumathi, J.
1. This Appeal arises out of the judgment in O.S.No:95 of 1975 on the file of Sub Court, Nagapattinam which is a suit filed by the first respondent-plaintiff herein for declaration of title, partition and separate possession of her one half share in the suit properties.
2. The circumstances which led to the re-hearing of this Appeal could briefly be stated thus:-
3. Case of the plaintiff is that the suit properties belong to the estate of Haji Abdul Rahman who died on 7.10.1974. The plaintiff is the daughter of the said Abdul Rahman through first wife. The relationship of the parties is:
Hajee Abdul Mohd.Sadakathullah D-4 to D-6 D-7 to D-10 Rahman Maraikkani D-3 Brothers Sisters (Died on 7.10.74) Syed Abdul Khader =Umma Habeeba =Nafeesa =Fathima D - 11 Nachiar Nachiar Nachiar (Foster son of Hajee (Plaintiff) D.1 D-2 Abdul Rahman) 1st wife 2nd wife 3rd wife = Saharvan Nachiar D - 12
4. The plaintiff claims half share in A to N Schedule attached to the Plaint. According to the plaintiff defendants 1 to 6 are each entitled to 2/32 share and defendants 7 to 10 are entitled to 1/32 share each. Case of the plaintiff is that her father Abdul Rahman settled in Singapore and was doing business in precious stones and flourishing merchant and earned large amount from out of his business. He found expedient and convenient to purchase the properties in the name of D.1, D.11(who was his brother's son and whom he had been treating as his foster son) and D.12, wife of D.11. Thus according to the plaintiff, the suit properties "C", "D", and "E" schedule were purchased in the name of D.1, D.11 and D.12 by Abdul Rahman from out of his own money and thus D.1, D.11 and D.12 are only Benamidars for "C", "D" and "E" schedule properties and thus the plaintiff is entitled to half share in the above three schedules also.
5. D.1, D.11 and D.12 are the main contesting defendants. They resisted the suit denying Benami nature of "C", "D" and "E" schedule properties. According to them the above three schedules are not available for partition.
6. Upon consideration of evidence let in by the parties, the Trial Court passed a decree for partition and separate possession of half share in favour of the plaintiff in respect of Schedules "A" to "I" items 2,4,5,6 and 14 to 21 in "J" Schedule, item 2 in "K" schedule "M" and "N" schedule properties. The Trial Court has further held that the second defendant is legally married wife of the deceased and is entitled to 1/32 shares. Defendants 1, 11, and 12 are directed by the decree to render accounts to the plaintiff in respect of Schedules "B" to "G" from the date of death of Abdul Rahman, i.e., 7.10.1974. The suit was dismissed in other respects.
7. Aggrieved over the decree of the Trial Court D.1, D.11 and D.12 have preferred Appeal A.S. No. 701 of 1983. As against disallowing of partition in certain items, plaintiff has preferred Cross Appeal. Earlier Division Bench of this Court partly allowed the Appeal interalia setting aside the "decree of the Trial Court relating to schedules "B","C","D","E","F" and "G" and dismissing the suit with regard to the said schedules. With certain directions and modifications, the decree of the Trial Court was confirmed. During the pendency of the Appeal before this Court, Benami Transactions (Prohibition) Act, 1998 has come into force. Applying the principles laid down in Mithilesh Kumari V. Prem Behari Khare and finding that Section 4(2) of the Act bars any defence based on any right in respect of any property held Benami, this Court has set aside the division of the properties in "C", "D" and "E" schedule properties. Aggrieved over the same the first respondent/plaintiff has preferred Special Leave Petition before the Supreme Court in Civil Appeal No. 12297 of 1996.
8. When the Special Leave Petition came up before the Supreme Court, the Hon'ble Supreme Court by its order dated 16.9.1996 passed the following order:-
"It is not disputed by the learned counsel for the parties that in view of the judgment of this Court in R.Rajagopal Reddy Vs. Padmini Chandrasekharan , the High Court Judgment in respect of "C", "D" and "E" Schedule properties is to be set aside and the matter remanded back to the High Court for reconsideration in the light of the above mentioned judgment. We order accordingly. The appeal is disposed of. No costs."
9. In the above said decision , group of matters came up before the Hon'ble Supreme Court for re-consideration of the views in Mithleshkumari's case
(i)that Section 4(2) in all the suits filed by the persons in whose names properties are held, no defence can be allowed at any future stage of the proceedings;
(ii)that the properties are held Benami, cannot be sustained.
Finding that the above views are erroneous, the Supreme Court has held as under:-
"It is pertinent to note that Section 4(2) enjoins that no such defence "shall be allowed" in any claim, suit or action by or on behalf of a person claiming to be the real owner of such property. That is to say no such defence shall be allowed for the first time after coming into operation of Section 4(2). If such a defence is already allowed in a pending suit prior to the coming into operation of Section 4(2) enabling an issue to be raised on such a defence, then the Court is bound to decide the issue arising from such an already allowed defence as at the relevant time when such defence was allowed"
10. Thus in the light of the above, it is clear that the real owner who has already been allowed to take the defence plea on the ground of Benami prior to coming into operation of Section 4(2) of the Act cannot be said to have been given a better treatment as compared to the real owner; he can still take up such a defence notwithstanding the prohibition of Section 4(2). In other words, the defence of Benami that is available to the parties, if already pleaded is no way nullified by the passing of the Act.
11. In the light of the principles laid down in , we have carefully considered the pleadings and the evidence on record. By a reading of Plaint averments in para (11), we find that the plaintiff has taken a definite plea of Benami "that Abdul Rahman had found it expedient and convenient to purchase some of the properties in the name of D.11, D.11 and D.12...." Plea of Benami is stoutly opposed by the defendants 1,11 and 12 contending that they have paid the consideration from out of their own money for purchase of the properties in "C", "D" and "E" schedule. Thus in the light of the principles laid down in the decision Rajagopal Reddy Vs. Padmini Chandrasekharan , the appeal is considered by us.
12. In view of the directions by the Supreme Court the points for consideration in re-hearing of this Appeal is confined only to "C", "D" and "E" schedule properties. Schedule-C comprises of four items viz., S.Nos:390/1, 372/1 and 535/6 and the 4th item is a Lodge under the name D.K.R Lodge in Nagoor (not described as a lodge in the Plaint Schedule). Schedule-D comprises of ten items of lands. Items 1 to 6 are in Thiruvaduraimangalam and items 7 to 10, wet lands situate in Sholanganallur village. Total extent of D-schedule properties is 9 acres 43 cents. Schedule-E comprises of three items of wet lands in Sholanganallur village, extent of 1.40 acres and 2.42 acres in Thiruvaduraimangalam village.
13. We have heard the elaborate arguments of both counsels. The learned Senior Counsel Mr. V.S. Subramanya Iyer, for Mr. A.J. Abdul Razak, learned counsel appearing for the appellants, in his meticulous submissions relied upon and contended that heavy burden is cast on the person who alleges that the transaction is a Benami transaction and that burden has to be strictly discharged by adducing legal evidence of definite character. Drawing our attention to the evidence and Plaint averments, the learned senior counsel submitted that such evidence of definite character is found to be wanting. The learned Senior Counsel referred to the recitals in certain sale deeds Exs.B.3, B.2 and B.4 and contended that even assuming that Abdul Rahman had paid part of the consideration, in view of the decision in that source of money cannot be the sole consideration for determining the nature of the transaction. Further drawing our attention to the number of documents, the learned Senior Counsel submitted that the real state of affairs and the weighing of probabilities clearly substantiate title of D.1, D.11 and D.12 and that they are the real owners. It is also submitted that the Trial Court overlooked and brushed aside several important aspects namely, the possession of original sale deeds by the defendants; that the defendants 1,11and 12 had independent source of income. Further contending, the learned Senior Counsel submitted that the Trial Court erred in presuming the Benami nature of the transaction solely on one aspect that the payment of part of purchase money flew from Abdul Rahman and the Trial Court erred in not distinguishing that Abdul Rahman may not have intended to benefit his wife and foster son, D.1.
14. Repelling the arguments of the appellants, the learned counsel for the first respondent-plaintiff has placed reliance upon , in support of his contention that whenever the property is purchased in the name of his close relation like wife or son, presumption arises that they are only Benamidars which presumption was rightly raised by the Trial Court. On behalf of the plaintiff, it is further submitted that the burden squarely lies upon the defendants to prove that Abdul Rahman intended to benefit them. Much reliance is placed upon the recitals in the sale deeds-Exs.B.2 and B.4 that part of the sale consideration flew from Abdul Rahman.
15. The learned counsel has taken us through the evidence of P.W.3 who is either the scribe or the attestor in some of the sale deeds and submitted that the evidence of P.W.3 convincingly establishes the source of money which flew from Abdul Rahman and the Trial Court has rightly acted on the evidence of P.W.3 in finding that Schedule "C", "D" and "E" are available for partition to the plaintiff.
16. Upon consideration of the rival submissions, evidence on record, Judgment of the Trial Court and other materials, the following points arise for our consideration:-
(1) On the basis of relationship of D.1 and Abdul Rahman, whether the Trial Court was right in finding that D.1 is only a Benamidar?
(2) For some purchases in the name of D.11, merely because the part of purchase money was paid by Abdul Rahman, was the Trial Court right in finding that D.11 is not the real owner, but only an ostensible owner?
(3) From the fact that Abdul Rahman had gone to Singapore and that in view of the relationship of the parties, whether the Trial Court was right in finding that D.1, D.11 and D.12 are only Benamidars for Schedule "C", "D" and "E"?
(4) Whether the findings of the Trial Court relating to Schedule "C", "D" and "E" are sustainable?
17. POINTS 1 TO 4:-
Abdul Rahman was a citizen of Singapore and that he was a dealer in Gems and precious stones and doing business in Singapore and also in India, that Abdul Rahman was carrying on business under the name and style of "Dawood Maracair Sons Pvt., Ltd.," in Singapore in which D.1 owned large amount of shares and Abdul Rahman was the Managing Director of the company. After the death of Abdul Rahman in 1974, D.11 became the Managing Director.
18. Case of the plaintiff is that from out of the money earned by Abdul Rahman out of his business he purchased properties in the name of D.1, D.11 and D.12. The onus is on the plaintiff who alleges that the transactions are Benami; that the sale deeds are not really what they profess will have to be regarded by the Courts with caution and must be strictly made out by the evidence. The decision of the Court on determining such a question cannot be based upon mere suspicion but must rest upon the legal grounds and the evidence of definite character. As to the principles relating to onus of proof, the learned Senior Counsel for the appellants has drawn our attention to 1994 (1) SCC 3 [Jaydayal Poddar (Deceased) Through L.Rs and another Vs. Mst.Bibi Bazra and others]. The above decision lays down the circumstances as under which the Courts are to be usually guided in determining Benami nature:-
1)The source from which the purchase money came;
2)The nature and possession of the property after the purchaser;
3)Motive, if any, for giving the transaction a Benami colour;
4)The position of the parties and the relationship, if any, between the claimant and the alleged Benamidar;
5)The custody of the title deeds after the sale; and
6)The conduct of the parties concerned in dealing with the property after the sale.
19. We have also kept in our view the well established principle that in case of Benami, source of purchase money though a valuable test is not the only criterion in determining the nature of Benami transaction. In this regard, it is relevant to refer to the decision of the Supreme Court in in which it has been held thus:-
"To prove that transaction is Benami the onus is on the person who so asserts it-Source from which purchase money came is material factor but not conclusive factor to establish that purchase is Benami"...."When once the plaintiff establishes that consideration for transaction proceeded from him, onus shifts to the defendant to establish that transaction was not Benami and that a beneficial interest was intended to pass to him."
20. We may straight away mention that the Trial Court mainly concentrated its attention on the consideration and the recitals as to the payment of part of purchase money which flew from Abdul Rahman. The Trial Court had not taken into account the relationship of the parties, nor considered the aspects whether Abdul Rahman intended to benefit his wife and foster son-D.1 and D.11. The Trial Court had also not considered the source of income available for D.1 and D.11 and his wife D.12.
21. As noted earlier, the main point for consideration is to determine the Benami nature or otherwise of Schedule "C", "D" and "E". In the light of the rival submissions of the parties and directions of the Hon'ble Supreme Court, we have carefully re-apprised the evidence and other materials on record. The burden of proof squarely lies upon the plaintiff who alleges Benami transaction. The Courts decision on the Benami nature of the transaction must depend not merely upon suspicion and inferences, but must be based upon evidence of definite character. By a careful reading of Plaint avermetns, we find that the plaint lacks such definite averments. In para 11 of the Plaint, it is vaguely averred "?he had found it expedient and convenient to purchase some of the properties in the name of D.1, D.11 and D.12". In variation of the above averments, P.W.1-husband of the plaintiff had stated that anticipating difficulties and to avoid any possible inconvenience, Abdul Rahman had purchased the properties in the name of D.1, D.11 and D.12. P.W.1 has not elaborated upon the inconvenience and the reason for such purchase. Nature of Benami transaction is a question of fact. Under Order VI Rule 4 C.P.C.,there must be definite averments of facts and pleadings. The plaint averments are silent as to the circumstances and the compelling necessity of Abdul Rahman for purchasing the properties in the name of D.1, D.11 and D.12. It is to be noted that the plaintiff though said to be in good health and worldly wise, she has not chosen to examine herself. Only the husband of the plaintiff is examined as P.W.1. Without mincing words in more than one place, P.W.1 has stated that he has no personal knowledge about the sale deeds B.11, B.12 and B.13. Further, P.W.1 has admitted that he was not at all in India at the time of execution of Exs.B.1, B.2, B.4, B.5 and B.6. When P.W.1 has no personal knowledge about the sale deeds nor he is an attestor in the sale deeds, no value could be attached to his oral evidence, nor can it be said that the plaintiff has satisfactorily discharged the onus cast upon her in proving the Benami nature of the transaction.
22. C-SCHEDULE PROPERTIES IN THE NAME OF D-1 D-1 purchased C-Schedule properties in her name. The particulars of sale deeds pertaining to C-Schedule Properties and payment of consideration are as noted below:-
Item/Survey Number/ Extent/Exhibit Particulars of sale deed Consideration paid ITEM-I Ex.B.9 (28.7.1960) [RS. No. 390/1(1.00)] Ex.B.10(11.4.1964) [RS. No. 390/1(1.67)] Sale deed in favour of D.1 by Dhanamani Ammal (DW.8) Scribe-P.W-3 Ex.B.9 for Rs. 1000/=
(i) D.1 paid Rs. 800/= for discharge of debts
(ii) Rs. 200/= before Sub-registrar Ex.B.10 for Rs. 2000/-
(i) Towards discharge of Mortgage debts Rs. 1600
(ii) Rs. 400/= paid before the Sub-Registrar ITEM-2 S.No:312/1 (0.80) Ex.B.8 (20.7.1960) Sale deed in favour of D.1 by Vedhalakshmi Ammal for Rs. 700 attested by D.W.7
(i) Rs. 550/= paid towards mortgaged debts
(ii) Rs. 150/= paid before Sub-registrar ITEM-3 S. No. 535/6 (0.37) Ex.B.7 (20.7.1968) Sale deed in favour of D.1 Somu Pillai for Rs. 300 attested by D.W.7
(i) D.1 paid advance of Rs. 100/=.
(ii) Rs. 200/= paid before Sub-Registrar ITEM-4 Old House Ex.B.14 (23.8.1972) Sale deed in favour of D.1 by Rathinavelu Konar for Rs. 8000/= (Scribe + attestor P.W.6)
(i) Rs. 4000/= paid as advance
(ii) Rs. 4000 before the Sub-Registrar The recitals in the above sale deeds as to the consideration are all definite strong circumstances that D.1 herself had paid the consideration.
23. The definite recitals as to the payment of consideration by D.1 as stated above in the above sale deeds was discredited by the Trial Court on the following grounds:
(i)that D.1 had no independent source of income;
(ii)in view of close relationship of Abdul Rahman and D.1 in the view of Trial Court, D.1 must be presumed to be Benamidar for which the Trial Court relied upon .
(iii)that evidence of P.W.3, Village Karnam who negotiated for sale deeds and signed as witness in Exs.B.8 and B.9 and that evidence of P.W.3 is to the effect that Abdul Rahman paid the money which was paid to the purchaser through Balasubramaniam.
24. We have hardly any difficulty in finding that none of the above reasoning of the Trial Court could upset the definite recitals as to the consideration in sale deeds. It is relevant to note that even in the written statement of D.1, it is averred that the family was running the business under the name and style of "Dawood Maracair Sons Pvt Ltd.," in Singapore and that D.1 was a partner and D.11 was a Director of the firm. Thus D.1, is proved to have independent source of income which was not considered by the Trial Court. Strong piece of evidence-recitals as to the payment of consideration was lightly brushed aside by the Trial Court by saying "that excepting the interested testimony of D.1 there is no evidence on record to show that the property was purchased by her own funds as she had no money at that time...." We may point out that the oral evidence is only to supplement and strengthen the recitals in the document. The oral evidence by itself does not stand in isolation as found by the Trial Court.
25. One of the important circumstance which weighed in the mind of the Trial Court is the oral evidence of P.W.3 who is the scribe in Exs.B.9 and B.10. According to P.W.3 though the sale deeds were taken in the name of D.1 because Abdul Rahman had gone abroad, he had taken those sale deeds in the name of D.1 by paying the purchase money. At this juncture it is to be pointed out that Abdul Rahman purchased many landed properties including A-Schedule properties in his own name. The reasons stated by P.W.3 for purchase of properties in the name of D.1 does not address to reason. Further D.W.8, vendor has clearly spoken about the payment of consideration by D.1. Considering in the light of evidence of D.W.8, vendor, we find that the evidence of P.W.3 has no force.
26.ITEM NO. 3 OF C-SCHEDULE D.1 purchased item No. 3 under Ex.B.7 sale deed. Ex.B.7 is attested by D.W.7. In his evidence D.W.7 has clearly spoken that Peria Maraicair, father of D.1 had paid the consideration and that Abdul Rahman was not at all in India at the time of purchase of Item No. 3. Evidence of D.Ws 1 and 7 strengthen the recitals as to the passing of consideration stated in Ex.B.7.
27. ITEM NO. 4 OF C-SCHEDULE:
At the time of purchase of item No. 4 under Ex.B.14 (dated 23.8.1972) there was a house in the site. After the death of Abdul Rahman the said house was demolished and in that place a Lodge under the name D.K.R Lodge is constructed. As noted earlier in para (21), Ex.B.14 sale deed in favour of D.1 by Rathinavelu Konar is for Rs. 8000/=. P.W.6, Rathinavelu Konar who is the scribe and attestor in Ex.B.14 has stated that balance sale consideration of Rs. 4,000/= was paid before the Sub-registrar by D.1's father Peria Maracair. But the recitals are to the effect that D.1 herself had paid the consideration. Being the scribe and the attestor, it is not open to P.W.6 to depose in variation to the recitals in the sale deed Ex.B.14. We are of the view that the Trial Court erred in acting on the evidence of P.W.6 in finding that for purchase of Item No. 4, Abdul Rahman has paid the consideration and the same cannot be endorsed with.
28. The old house in Item No. 2 was demolished and the lodge was constructed. Case of the plaintiff is that her father Abdul Rahman arranged for construction of the Lodge. Drawing the inference that the consideration for purchase of Item No. 4 was paid by Abdul Rahman, the Trial Court held the Loge was constructed by Abdul Rahman. Absolutely there is no proof that Abdul Rahman started the construction. Admittedly Abdul Rahman died on 7.10.1974 and the construction started only after his death in 1975. D.W.12-D.1's Secretary and her cousin brother D.W.11 have consistently spoken about the construction of the Lodge Building in 1975 with the funds provided by D.1. Ex.B.118 is the permission granted by Nagapattinam Municipality extending time for construction from 30.6.1974 to 28.6.1975. Thus it is clear from Ex.B.118 that on application of D.1, time for construction of the Lodge was extended beyond June 1974 and the construction must have been started only thereafter. Ignoring Ex.B.118, the Trial Court erred in acting on the interested testimony of P.Ws 1 and 8 in finding that Abdul Rahman has started the construction even during his life time.
29.Overwhelming evidence as to the construction of Lodge by D.1 could be enumerated as under:
(i)As stated in the preceding para, only on the application of D.1 to Nagapattinam Municipality, time for construction was extended from 30.6.1974 to 28.6.1975; D.1 was directed to maintain the Lodge in good condition (Ex.B.119);
(ii)that building materials were purchased by D.1 and bills and vouchers are Exs.B.127, 129 to 140;
(iii)Non-domestic Electricity connection was obtained in the name of D.1 and D.1 paid the electric bills (Exs.D.107 to 112).
30. We find that the Trial Court grossly erred in brushing aside the above innumerable documents and relied upon Exs.A.6 and A.17 and 18, which cannot be weighed as against the above number of documents enumerated in para (29). We are unable to subscribe to the above reasoning of the Trial Court that the materials were purchased by Abdul Rahman and that Abdul Rahman made arrangements for construction and we are unable to subscribe to the above reasoning of the Trial Court. The Trial Court merely stated that "attempts were made by the deceased Abdul Rahman for the construction of the Lodge" for holding D.K.R.Lodge to be property of Abdul Rahman. We are of the view that there is dearth of legal evidence of definite character lacking.
31. D.1 had also dealt with C-Schedule properties. Item No. 1 (Survey No. 390/1) was settled in favour of D.11 under Ex.B.43 (dated 14.6.1967). Such assertion of D.1's right during the life of time Abdul Rahman discredits the plaintiffs contention. Patta (Ex.B.44) also stands in the name of D.1. D.1 also paid the kist receipts or C-Schedule Properties (Exs.B.46 to B.75). In view of the innumerable evidence let in by D.1 ascertaining her right and being in possession of C-Schedule Properties, we find it difficult to endorse the approach of the Trial Court in discrediting the above strong piece of evidence.
32. It may not be out of context to point out that in the Plaint Schedule Item No. 4 of C-Schedule property is merely as T.S. No. 897 and a house thereon worth Rs. 15,000/=. The plaintiff has not either stated about the existence of the Lodge or the construction of the Lodge. Though the litigation is pending for more than two decades, plaintiff had also not taken steps for amending the plaint showing the construction of D.K.R.Lodge in Item No. 4 of C-Schedule. Thus we hold that the findings of the Trial Court that Abdul Rahman is the real owner of C-Schedule property and that D.1 is only a Benamidar is to be reversed.
33. D-SCHEUDLE ITEMS D-Schedule comprises of ten items purchased by D.11. In most of the sale deeds, Exs.B.1, B.3, B.4 and B.11, D.11 is shown as the Son of Abdul Rahman. D.11 purchased D-Schedule items and consideration is said to have been paid as noted below:-
Item/Survey Number/ Extent/Exhibit Particulars of sale deed Consideration paid ITEM-I S. No. 427/3 (0.77) Ex.B.4 (6.4.1973) Sale deed in favuor of D.11 for Rs. 2079/= from Pattammal, mother of P.W.7. D.11 described as son of Abdul Rahman
(i)Rs. 201/= paid by Abdul Rahman
(ii)Advance of Rs. 178/= received for Abdul Rahman
(iii)Rs. 1700/= paid before Sub-Registrar ITEMS-2 to 4 S.No:431/1 (1.01) S.No:437/6 (3.80) S. No. 437/1 (2.64) Ex.B.3 (14.9.1971) Sale Deed in favour of D.11 by Brinda and Seshadri for Rs. 22308/= Advance of Rs. 15000/= paid by Abdul Rahman Further amount of Rs. 7308/= paid by D.11.
ITEM-5 S.No:432/11 (0.42) Ex.B.11 (6.4.1973) Sale deed in favour of D.11 (P.W.7) by Govindaraj for Rs. 11341/=
(i) Advance of Rs. 100/= paid by Abdul Rahman
(ii)balance of Rs. 10341/= received in two instalments from Abdul Rahman ITEM-6 S. No. 427/5 (0.09) Ex.B.12 (11.6.72) Sale Deed in favour of D.11 by Vaithinatha Pillai (D.W.7) for Rs. 500/= attested by P.W.5, scribe.
Consideration of Rs. 500/= paid by D.11 ITEM -7 & 8 S. NO. 527/3 (0.89) S. NO. 527/4 (0.03) Ex.B.1 (25.3.68) Sale deed in favour of D.11 (then minor) rep. by guardian Peria Maracair for Rs. 2000/=
(i) Advance of Rs. 1000/= paid by D.11
(ii) Further consideration of Rs. 1000/= paid by D.11.
ITEMS 9 AND 10 s. No. 543/7 (0.35) S. No. 543/3 (0.13) Ex.B.2 (29.8.1969) Sale deed in favour of D.11 (then minor) Ganapathy-1 Shanmugam-2 Scribe-PW.3
(i)Consideration of Rs. 400/= towards discharge of Mortgage debt
(ii) Advance of Rs. 100/=
(iii)Rs. 500/= paid before Sub Registrar.
34. ITEM Nos: 2,3,4 of D-SCHEDULE As noted above, D.1 purchased these items under Ex.B.3 sale deed for Rs. 22,308/=, out of which Rs. 15,000/= was paid by Abdul Rahman. Balance consideration of Rs. 7,308 was paid before the Sub-Registrar. P.W.4, Rangachariyar, father of Vendor Brinda has stated that he received the balance amount of Rs. 7,308/= from Abdul Rahman. Though part of the consideration is said to have been paid by Abdul Rahman, payment of consideration alone cannot be the sole criterion for holding these items as the properties of Abdul Rahman in view of the subsequent dealing of the properties by D.11. Further, in his evidence D.11 (D.W.9) has stated that he has paid the balance consideration from out of the money which he brought from Singapore.
35. ITEM No. 6 OF D-SCHEDULE D.1 purchased this property under Ex.B.12 for Rs. 500/= According to D.W.7, Vaithinatha Pillai, consideration was paid by D.11 himself. P.W.5 is the attestor and scribe in Ex.B.12. On the evidence of P.W.5, the Trial Court found that Abdul Rahman had negotiated for sale by paying the sale consideration. We find no weight could be attached to the evidence of P.W.5 as against the evidence of D.W.7, the vendor himself, who is stated to have received the consideration from D.11.
36. ITEM Nos: 7 AND 8 of D-SCHEDULE:
These items are purchased by D.11 under Ex.B.1 sale deed. IN Ex.B.1, D.11(D.W.9) is described as the minor who was represented by his maternal grand father Peria Maracair as his guardian. AS per the recitals in Ex.B.1, consideration was paid by D.11 himself. The recitals in the sale deed as to the consideration cannot easily be side stepped merely on the ground that D.11 being a minor could not have paid the sale consideration. More so, when D.11 was represented by guardian Peria Maracair, the reasoning cannot be illogically be stretched to the extent of presuming that Abdul Rahman paid that consideration. The findings of the Trial Court that consideration for Ex.B.1 was paid by Abdul Rahman does not merit acceptance.
37. ITEM Nos: 9 AND 10 OF D-SCHEDULE:
These items are purchased by D.1 under Ex.B.2 sale deed for Rs. 1,000/=. Part of consideration of Rs. 400 was paid by D.1 and another part consideration of Rs. 400/= was to be paid by D.11 towards discharge of mortgage deed in favour of Abdul Rahman. Since the mortgage deed was in the name of Abdul Rahman, the Trial Court presumed the source of money flew from Abdul Rahman and that the discharged mortgage was not produced. It may be noted that in Ex.B.2 also D.11, then minor, was represented by maternal grand father Peria Maracair. P.W.3 is the scribe of Ex.B.2, sale deed. On the evidence of P.W.3, the Trial Court faulted D.11 for not examining Peria Maracair representing the then minor, D.1. Oral evidence of P.W.3 which is in variation to the recitals in the sale deed cannot be preferred, nor any weight be attached to the same. WE find that the Trial Court was not right in ignoring the recitals in Ex.B.2 and basing its findings on the oral evidence of P.W.3.
38. The subsequent conduct of D.11 in dealing with D-Schedule properties also discredits the plaintiff's case. D.1 paid kist for D-Schedule items(Exs.B.195 to 214) Levy notice for paddy purchase was also issued in the name of D.11 as seen from Ex.B.215. D.11 has thus proved to be in possession of D-Schedule items. The conclusion of the Trial Court that "D" Schedule is the property of Abdul Rahman is to be set aside.
E-SCHEDULE
39. E-Schedule comprises of four items purchased by D.12, wife of D.11 under Ex.B.5, B.6 and B.13 sale deeds paying consideration as noted below:-
Item/Survey Number/ Extent/Exhibit Particulars of sale deed Consideration paid ITEMs-I & 2 S. No. 535/9 (0.59) S. No. 535/3 (0.10) Ex.B.6 (30.3.1971) Sale deed in favour of D.12 (then minor) rep. by guardian Peria Maracair by Jagadambal and others for Rs. 1656/= P.W.3 Scribe
(i) Advance of Rs. 16 paid by D.12
(ii) Payment of consideration of Rs. 1500/= before Sub Registrar ITEMS-3 S.No: 541/1 (0.71) Ex.B.5 (29.12.70) Sale deed in favour of D.12 (then minor) rep. by guardian Peria Maracair for Rs. 1775
(i)Advance of Rs. 210/=
(ii) Towards discharge of Mortgage debt Rs. 1055/=
(iii)Further advance Rs. 200/=
(iv)Further payment of Rs. 210/= ITEM-4 S.No: 432/4 (2.42) Ex.B.13 (14.4.71) Sale deed in favour of D.12 for Rs. 7986/= D.12(then minor) rep. by Peria Maracair
(i) Advance of Rs. 2100 paid by D.12
(ii) Further advance of Rs. 5886/= paid by D.12
40. In all the above three sale deeds, D.12 is described as minor represented by Peria Maracair, father of D.1. Peria Maracair would have represented D.12 as the guardian out of love and affection being the wife of his grand son. The recitals in the sale deed are to the definite effect of showing that the consideration was paid by D.12 herself. The Trial Court erred in unreasonably stretching the reasoning to the extent of presuming that Abdul Rahman had sent the money from Singapore. Pursuant to the sale deeds, D.12 is in possession of E-Schedule properties. Exs. B.216 and 217 are the patta Pass Books issued in favour of Saharvan Nachiar (D.12). D.12 has paid the Kist for the E-Schedule (Exs.B.219 to B.233) Ex.B.218 is the Paddy Purchase Pattial issued to D.12. Thus we find ample evidence proving possession and enjoyment of E-Schedule by D.12.
41. P.W.3 is the scribe of Ex.B.6 sale deed. Like in all other instances, for Ex.B.6 also, the Trial Court attached undue weight to the oral evidence of P.W.3 in finding that the consideration was paid by Abdul Rahman. The general approach of the Trial Court in placing reliance upon the oral evidence of P.W.3 is erroneous and unsustainable. No weight could be attached to the evidence of P.W.3 which has the effect of varying or contradicting the terms of the contract. Thus we find the approach of the Trial Court in acting on the evidence of P.W.3 discrediting the recitals in the sale deeds cannot be sustained.
42. No doubt for purchase of some of the items in the name of D.11, part of consideration was paid by Abdul Rahman. It is well established that payment of purchase money though a valuable test cannot be the sole criterion in determining the nature of the transaction. Whether a particular transaction is Benami or not is one of intention; there may be other circumstances to negative the prima facie inference from the fat that purchase money was paid by Abdul Rahman. Thus, we find that payment of part of consideration for purchase of some items in D-Schedule cannot by itself prove and establish the Benami nature of "C", "D" and "E" Schedule properties. Admittedly, Abdul Rahman had brought up his brother's son D.11 as his foster son. It may be that Abdul Rahman paid part of the consideration out of his love and affection towards D.11, there by intending to benefit him. We find that this is further probabilised by the circumstances that Abdul Rahman allowed D.11 to enjoy D-Schedule properties.
43. Apart from the slender evidence let in by way of recitals in the sale deed as to payment of part of consideration by Abdul Rahman for purchase of few items, no other cogent, convenient evidence is forthcoming establishing the Benami nature of the transaction. Evidence is certainly found to be wanting as to motive and the compelling circumstances for purchase of properties in the name of D.11. The case of the plaintiff is further discredited by production of the original sale deeds and other documents by the defendants. Possession and custody of title deeds is one of the strongest piece of evidence proving that the purchasers are the real owners of the properties. This strong and definite evidence was overlooked by the Trial Court on the flimsy ground finding that D.1 might have been happened to be in possession of the sale deeds since Abdul Rahman happened to be in Singapore. We re not inclined to endorse this approach and the erroneous finding of the Trial Court.
44. As against the sparse evidence let in by the on behalf of the plaintiff we find sufficient and cogent evidence to hold that D.1, D.11 and D.12 have been dealing with Schedules "C", "D" and "E" as their own even during the life time of Abdul Rahman. The reasoning and the inferences by the Trial Court are unsupported by the evidence on record. The Trial Court seems to have mainly concentrated on part payment of of consideration by Abdul Rahman as per the recitals in some of the sale deeds. The finding and conclusion of the Trial Court are against the weight of evidence.
45. The subsequent conduct of the parties in dealing with properties clearly establishes that D.1, D.11 and D.12 are the real owners of Schedules "D" and "E" and the above three schedules are not available for partition. The findings and conclusion of the Trial Court, dated 23.8.1983, made in O.S. No. 95 of 1975, on the file of the Subordinate Judge, Nagapattinam, on Schedules "C", "D" and "E" is to be set aside allowing this appeal.
46. Therefore, the Judgment and Decree of the Trial Court in O.S.No:95 of 1975 on the file of Sub Court, Nagapattinam, directing partition of properties in Schedules "C","D" and "E" is set aside and the suit is dismissed relating to Schedules "C", "D" and "E". Rest of the directions issued by this Court by the judgment dated 22.12.1993 hold good. No costs.